Today in History (1862) - The U.S. government forbids all Union army officers from returning fugitive slaves, thus effectively annulling the Fugitive Slave Law of 1850 and setting the stage for the Emancipation Proclamation. On the same day in 1865, the Confederate Congress voted to enlist 300,000 black troops, granting them freedom with the consent of their owners. Lee surrendered a few weeks later.

June 12, 2005

Establishment Clause Issues

by Sean Sirrine

I think that both Establishment Clause cases are much more complicated than has been discussed here. Here in Boise we had a similar case in which a statue of the Ten Commandments, put up to advertise the Charles Heston movie, was in one of our state parks and recently was removed by order of the city council. Judge Lodge upheld the city council's decision, but there is more to the story.

The issue came up when that nut job, Fred Phelps from Kansas, wanted to put up a statue commemorating the death of Mathew Shepherd and his eternal damnation to hell. His potential ability to do this came from a ruling in the 10th Circuit:

“Any city that displays a Ten Commandments monument on public property must also allow monuments espousing the views of other religions or political groups on that same property.”

This is the type of crap you have to put up with if you allow religious monuments on public property. Is it illegal to have the Ten Commandments in a public place? -No. It most probably is illegal to have only the Ten Commandments if other religious groups wish to put up monuments also.

This is where we get the beautiful slippery slope argument against religious monuments. If you allow the Ten Commandments, you have to allow monuments from the Church of Satan, the Wicca’s, and any other groups you might find reprehensible, (i.e. crazy bigots).

As a policy decision I'm for having no religious monuments in public places, but as a legal decision it could go either way and be correct. I guess you could say it is an all or nothing decision. Either you can place a monument regardless of content or you can’t place any religious monuments at all.

I think the 10th Circuit misfired by not protecting decalogues that are put up in the context of historical documents. For example, a courthouse display that included Confucius's advice, Justinian's and Hammerabi's codes, etc. ought to be protected because it's not making the courthouse an open field for any wackjob, but rather being more in the nature of a museum display on a very specific topic. If the courthouse decides to put up a display commemorating "ideas protected by the First Amendment," Phelps's statue can go in next to an issue of Hustler.

To be sure, Establishment Clause cases are complicated, but we really haven’t been discussing any here, more than my outline of the probable framework the Supreme Court will use to decide both McCreary and Van Orden. I say probable because the Supreme Court can always abandon the tests heretofore used: the Lemon test, the Endorsement test, and the Coercion test. Some Court watchers have speculated that the court will abandon these tests because they’re rather cumbersome, among other reasons. The Court, for these two E.C. cases, may invent a new test or it may even abandon the idea of a test and choose to look to the text and original understanding of the text for guidance. I have severe doubts about the Court choosing the latter.

The Tenth Circuit opinion you cited, make no mistake, is a distillation of the Lemon test to maxim form. Lemon’s three (full) prongs are:
1. The government's action must have a legitimate secular purpose;
2. The government's action must not have the primary effect of either advancing or inhibiting religion; and
3. The government's action must not result in an "excessive entanglement" of the government and religion.

Holding that the Ten Commandment display must be offset by other religious displays is not consistent with the Lemon test, the prevailing rule for Establishment Clause matters. Displays that have been accompanied by secular symbols, for example, the Court has held to be consistent with the E.C.

Is it illegal to have a display of the Ten Commandments in a public space?—Assuming “public space” meant owned by the government, once the display can meet the Lemon test, it will not be considered a violation of the Establishment Clause. Likewise, whether a display is “most likely illegal if other religious groups wish to put up monuments” would have to be tested by Lemon’s three prongs to establish a violation of the E.C.

Where we’re missing some necessary distinctions is when we approach the “slippery slope.” There’s nothing in the controlling law (i.e. Lemon) that says because one religion has a display that’s allowed we must allow all proposed displays. Each display—the case even says—must be considered independently, and each filtered through the prongs of Lemon. So, it’s entirely fathomable that one sort of religious display can be allowed because it’s consistent with the E.C. whereas another proposed display would be disallowed. Each displays must meet Lemon’s standard.

As a policy decision, disagreement may exist. As a matter of law, certain displays are allowable while others are not. There is, however, under the law, no blanket disallowance of religious displays.